Criminal Procedure Code, 1973 – Section 313 – Object of – the statements given by the accused persons can be used for the purpose of appreciation of evidence and can also be used for corroboration of the prosecution evidence. But the burden of the prosecution to prove its case beyond reasonable doubt is not reduced to any extent.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Hon’ble Surendra Vikram Singh Rathore,J.
Hon’ble Anil Kumar Srivastava-II,J.
Delivered on 26.05.2016
(i) Case :- CRIMINAL APPEAL No. – 6 of 2009 Appellant :- Ashok Singh @ Mintu Singh (Pintu) Respondent :- State Of U.P. Counsel for Appellant :- Nagendra Mohan,A.M. Shukla,C B Pandey,Manish Kumar,Vivek Shrotria Counsel for Respondent :- G.A.,B.K. Singh,K.K. Singh,Maneesh Kumar Singh,Nishar Ahmed, R.P.Singh, Ram Prakash Singh,Rishad Murzata,S C Shukla,Vaibhav Kalia along with (ii) Case :- CRIMINAL APPEAL No. – 8 of 2009 Appellant :- Om Prakash Tiwari Respondent :- State Of U.P. Counsel for Appellant :- Raghvendra Singh Counsel for Respondent :- G.A.,K.K. Singh,Maneesh Kumar Singh,Nisar Ahmed,Ram Prakash Singh,Rishad Murtaza,S C Shukla,Vaibhav Kalia (iii) Case :- CRIMINAL APPEAL No. – 81 of 2009 Appellant :- Sunil Kumar Tiwari Respondent :- State Of U.P. Counsel for Appellant :- Raghvendra Singh,A.M. Shukla, Akhilesh Chandra,Indrajeet Shukla,Nagendra Mohan,Rakesh Pathak,Surya Kant Misra,Vivek Shrotria Counsel for Respondent :- G.A.,B.K. Singh,K.K. Singh, Maneesh Kumar Singh,Nisar Ahmed,Ram Prakash Singh,Rishad Murtaza,Vaibhav Kalia And Case :- CRIMINAL APPEAL No. – 1781 of 2009 Appellant :- State Of U.P. Respondent :- Sunil Kumar Tiwari Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Indrajeet Shukla
(Per Surendra Vikram Singh Rathore, J.)
1. All the aforesaid criminal appeals arise out of a common judgment, hence these are being disposed of together.
2. Criminal Appeal No. 6 of 2009 has been preferred by convicted accused persons Ashok Singh alias Mintu Singh (Pintu) and Shailesh Kumar alias Pappu Singh while Criminal Appeal No. 8 of 2009 has been preferred by Om Prakash Tiwari and Babu Ram Tiwari, Criminal Appeal No. 81 of 2009 has been preferred by appellants Sunil Kumar Tiwari, Prem Nath Dubey, Rudra nath Dubey, Indra Nath Dubey, Santosh Singh, Ramji Tiwari and Girjesh Singh and Criminal Appeal No. 1781 of 2009 has been preferred by the State challenging the acquittal of accused persons under
Section 302/149 I.P.C.
3. Heard Mr. Nagendra Mohan, Mr. C.B. Pandey and Mr. Indrajeet Shukla, learned counsels for the appellants, Mr. Umesh Verma, learned A.G.A. for the State, Mr. I.B. Singh, learned Senior Advocate and Mr. Manish Kumar Singh, Advocate for the complainant and perused the lower court record.
4. Under challenge in all the aforesaid appeals is the judgment and order dated 17.12.2008 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Gonda in Sessions Trial No. 177 of 2004 arising out of Case Crime No.114-A of 2001, Police Station Nawabganj, District Gonda whereby all the appellants were convicted and sentenced as under:-
(i) Under Section 147 I.P.C., one year rigorous imprisonment and also with fine of Rs. 1,000/- each with default stipulation of three months additional rigorous imprisonment.
(ii) Under Section 148 I.P.C., two years rigorous imprisonment and also with fine of Rs. 2,000/- each with default stipulation of six months additional rigorous imprisonment.
(iii) Under Section 304 (I) read with Section 149 I.P.C. with imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of two years additional rigorous imprisonment.
(iv) Under Section 342 I.P.C., six months rigorous imprisonment and also with fine of Rs. 5,000/- each with default stipulation of one year additional imprisonment.
However, all the accused persons were acquitted of the charge under Section 325/149 I.P.C.
5. In brief the case of the prosecution was that complainant Shiv Bux Singh, who happens to be the father of deceased Chandreshwar Pratap Singh lodged an F.I.R. on 11.9.2001 at 14:15 hours at Police Station Nawabganj, District Gonda alleging therein that his younger son Chandreshwar Pratap Singh was managing the Taxi Stand Theka of Nawabganj. Janardan Prasad Tiwari, who has his shop in front of cold-storage and was P.R.O. of then Health Minister of Government of U.P. Sri Ramapati Shashtri, taking undue advantage of his influence, used to ply his vehicles and vehicles of the persons known to him without any serial and without token. This conduct was objected to by the deceased Chandreshwar Pratap Singh due to which an altercation took place on 31.7.2001 between Chandreshwar Pratap Singh and son of above-named Tiwari. Due to this altercation, Janardan Tiwari and his companions had threatened the son of the complainant with dire consequences. On 9.9.2001 Chandreshwar Pratap Singh was coming from Gonda and was going towards Nawabganj on a jeep at about 11:00 a.m. When his jeep reached near the turn of cold-storage, then one TATA 407 (minibus) was parked obliquely on the road due to which the entire road was blocked. The driver of the jeep of Chandreshwar Pratap Singh tried to take his jeep by the side of the road due to which the speed of jeep became very slow. In the meantime, all the accused persons, namely Sunil Tiwari, Babu Ram Tiwari, Om Prakash Tiwari, Ramji Tiwari resident of Majhanpurwa, Police Station Nawabganj Gird, Santosh Kumar Singh, Ashok Singh resident of Ballipur, Pappu Singh resident of Jalalpur, Girjesh Singh resident of Ballipur, Prem Dubey, Indresh Dubey resident of Khirhi Deeh, Police Station Wajeerganj armed with rifle, gun, hockey, Danda, iron rod, pistol surrounded the jeep and all the accused persons challenged Chandreshwar Pratap Singh and pulled him out of jeep and started beating him with hockey, Sonta, Danda, Sariya and with the butt of rifle, gun and took him to the shop of Janardan Tiwari and after closing the door of channel, he was badly beaten by the appellants. In the meantime, Ram Naresh Singh, Bhupendra Bux Singh, Rakesh Tiwari, Abdul Aziz reached there and saw the incident and immediately gave information of this incident at his house to his son Vijay Pratap Singh. On getting this information, his son Vijay Pratap Singh along with some other persons reached on the spot and found that Chandreshwar Pratap Singh was lying inside the channel door. Vijay Pratap Singh took his brother to Faizabad Hospital. The complainant also reached there, where after giving primary treatment he was asked to take him to Lucknow as his condition was serious. At that time, Janardan Tiwari, who was P.R.O. of Health Minister was present in the hospital, therefore, under his pressure, proper treatment was not ensured by the doctors. The complainant took his son to Mayo Medical Centre, Gomti Nagar, when his health improved a bit then he came to the Police Station Nawabganj district Gonda on 11.9.2001 and lodged the F.I.R. of this case.
6. On the basis of this report, case crime number 114-A of 2001 was registered and investigation proceeded, which was entrusted to PW-11 S.I. Lal Mani. During investigation of this case, as per prosecution story, on 14.9.2001 Lal Mani went to Mayo Hospital, Lucknow for recording the statement of Chandreshwar Pratap Singh and recorded his statement under Section 161 Cr.P.C. Subsequently Chandreshawar Pratap Singh succumbed to the injuries on 16.9.2001 thereafter the case was converted under Section 302 I.P.C.
7. In this case, investigation was subsequently transferred to CBCID and after completion of investigation, charge sheet was filed against all the accused persons.
8. Chandreshwar Pratap Singh was initially medically examined at District Hospital, Faizabad on the date of incident at 1:55 p.m. and following injuries were noted on his body:-
(i) Lacerated wound 5 cm x 1 cm x muscle deep right side of forehead 3.5 cm above right eyebrow. Fresh bleeding.
(ii) Lacerated wound 6 cm x 1.5 cm x muscle deep on right side of head 3 cm above injury no. (i). Fresh bleeding present.
(iii) Lacerated wound 4 cm x 1.5 cm x muscle deep on the right side of head 1.5 cm above injury no. (ii).
(iv) Lacerated wound 4 cm x 1 cm x muscle deep on right side of head 8 cm above left mastoid region.
(v) Lacerated wound 4 cm x 0.5 cm x muscle deep on the occipital region.
(vi) Lacerated wound 2.5 cm x 0.5 cm x muscle deep anterior aspect of second phalynx of right ring finger.
(vii) Multiple contusion in an area of 30 cm x 5 above anterior aspect of right forearm, just above wrist.
(viii) Contusion 5 cm x 2.5 cm on the dorsal dorsal aspect of right hand.
(ix) Multiple abrasion in an area of 18 cm x 2 cm on the anterior aspect of right leg, 4 cm below knee.
(x) Contusion 10 cm x 7 cm on the dorsal of right foot, lateral aspect just below ankle.
(xi) Abrasion 1 cm x 0.1 cm on the dorsum of left foot 7 cm below the left ankle.
(xii) Abrasion 2 cm x 1 cm of anterior of left leg 12 cm below the knee.
(xiii) Abrasion 2 cm x 0.5 cm on the left leg front aspect 4 cm below injury no. (ii)
(xiv) Multiple contusion in an area of 30 cm x 13 cm on right side of back starting from the top of shoulder.
(xv) Multiple contusion in an area of 26 cm x 18 cm on left side back starting from the top of shoulder.
(xvi) Contusion 13 cm x 7 cm on the left side of back 4 cm below injury no. (xv).
(xvii) Contusion 4 cm x 2 cm in the middle of back.
In the opinion of doctor, injury nos. (ii), (iii), (iv), (v), (vii) and (xiv) were kept under observation and x-ray was advised.
All the injuries were caused by hard and blunt object and were fresh in duration.
9. The deceased succumbed to the injuries on 16.9.2001 at 3:30 p.m. On the death of deceased, inquest proceedings were conducted by the Inspector of Police Station Gomti Nagar on the basis of death memo sent by Mayo Hospital, Gomti Nagar and postmortem on the body of the deceased was conducted on 16.9.2001 at 5:30 p.m. and following ante-mortem injuries were found on his body:-
(i) Lacerated wound 3 cm long with three stitches with right side forehead 3 cm above right eyebrow.
(ii) Lacerated wound 10 cm long with eight stitches on the top of head and 3 cm behind injury no. (i).
(iii) Lacerated wound 3 cm long with three stitches on left side of head, 6cm above and behind left ear.
(iv) Lacerated wound 4 cm long with three stitches 2.5 cm above injury no. (iii).
(v) Contusion 8 cm x 4 cm on front of left shoulder.
(vi) Stitched wound on middle dorsal phalynx of right ring finger 4 cm long on opening pus present in the middle inner phalynx bone of ring finger fracture.
(vii) Contusion on dorsum of right hand 4 cm x 4 cm.
(viii) Partially healed multiple abrasions in an area of 10 cm x 8 cm on middle dorsum aspect of right forearm.
(ix) Multiple abrasions in an area of 12 cm x 4 cm present on shin of left lower leg.
(x) Multiple healed abrasion (partially) in an area of 8 cm x 6cm on shin of right leg.
In the opinion of the doctor, the cause of death was septicemia as a result of ante-mortem injuries.
10. The appellants have pleaded a cross version in their defence for which a F.I.R. was lodged on the date of incident at 9:10 p.m. as Case Crime No. 114 of 2001 and investigation of the same was also entrusted to PW-11 Lal Mani.
11. The defence of the appellants as comes up from the evidence of DW-1 and DW-2 was that one TATA 407 (a mini passenger bus) left the Taxi Stand for Gonda. The said TATA 407 was chased by a jeep on which deceased Chandreshwar Pratap Singh was present. The said jeep overtook TATA 407 near cold-storage where it was stopped by Chandreshwar Pratap Singh thereafter he started abusing driver as he has taken the bus without taking the token and without paying the tax. On this the driver replied that he shall pay the tax after his return from Gonda for both the sides but Chandreshwar Pratap Singh asked him to take back the bus to the taxi stand and started beating the driver. The passengers sitting on the bus objected such act of Chandreshwar Pratap Singh. Then Chandreshwar Pratap Singh started abusing the passengers also. DW-2 was a passenger of the bus and DW-1 was a person present there. In the meantime, Om Prakash Tiwari, asked Chandreshwar Pratap Singh why the passengers are being harassed while driver is ready to pay tax. It annoyed Chandreshwar Pratap Singh and he raided his jeep on Om Prakash Tiwari due to which his leg was fractured and jeep stopped in the pile of crushed stones (gitti) and as it could not move and stopped there. Seeing such activities of Chandreshwar Pratap Singh the passengers sitting in the bus and other persons present there started beating Chandreshwar Pratap Singh. Om Prakash Tiwari was also medically examined at District Hospital, Faizabad on the same day at 1:45 a.m. and following injuries were noted on his person:-
(i) Abrasion 2 cm x 1 cm on the bridge of nose oozing present.
(ii) Contusion abraded 12 cm x 4 cm on the mid chest just below the nipple, kept under observation.
(iii) Abrasion 6 cm x 2 cm on the lower of left side arm just below the elbow oozing present.
(iv) Contusion 15 cm x 1 cm on the middle of right thigh red in colour, kept under observation.
(v) Abraded contusion on the right patella oozing present.
(vi) Abraded contusion 2 cm x 2 cm on left patella oozing.
Injury no. (ii) and (iv) were kept under observation. X-ray was advised. The injuries were caused by hard and blunt object and were fresh in duration.
12. At this stage, it is pertinent to mention here that on the report lodged by Sunil Kumar Tiwari against Chandreshwar Pratap Singh regarding the cross version of this incident, police filed final report because of the death of Chandreshwar Pratap Singh, who was sole named accused in that case. However, police could not trace out the two unnamed accused persons.
Brief description of evidence recorded during trial is as under:-
13. PW-1 Shiv Bux Singh is not a witness of this incident. He has given evidence regarding earlier incident that took place on 31.7.2001 as motive of this offence.
PW-2 Ram Naresh Singh is an eyewitness. He has supported the case of the prosecution. He is the first cousin of the complainant and was a chance witness, who as per his evidence reached place of occurrence by coincidence. He is resident of a village situated at a distance of about 6 -7 kilometers from place of occurrence. He has also stated that in his presence statement of Chandreshwar Pratap Singh was recorded by Investigating Officer in Mayo Hospital at Lucknow.
PW-3 Vijay Pratap Singh, PW-2 Ram Naresh Singh gave information to this witness at his house. When he came along with PW-2 and other persons to the place of occurrence then he saw that Chandreshwar Pratap Singh was lying in an injured condition inside the channel gate of appellant Sunil Kumar Tiwari and appellants were beating him. On the alarm raised by this witness appellants ran away. He has also stated that in Mayo Hospital in his presence statement of his brother was recorded by Investigating Officer.
PW-4 Dr. Sunil Agarwal, Neuro Surgeon of Mayo Hospital, who has proved the bed head ticket of Chandreshwar Pratap Singh.
PW-5 Dr. Arvind Kumar Srivastava, who has medically examined injured Chandreshwar Pratap Singh at District Hospital Faizabad and also medically examined appellant Om Prakash Tiwari, injured of the cross case.
PW-6 Jagdish Yadav is a formal witness who has prepared chik report and G.D. of this case.
PW-7 Dr. Sadanand has conducted postmortem on the body of deceased, details of which has already been mentioned earlier.
PW-8 Vishnu Pratap Singh is witness of the inquest proceedings.
PW-9 Uday Pratap Singh is a witness of the previous incident that took place on 31.7.2001, which is said to be the motive to commit this offence. He also reached at that time by chance.
PW-10 Ramesh Chandra Singh Yadav is Investigating Officer of CBCID.
PW-11 S.I. Lal Mani is Investigating Officer of the civil police, who has investigated both the cases till the investigation was handed over to CBCID.
PW-12 S.I. Ram Iqbal Singh, the then S.O. Gomti Nagar, who has prepared inquest report on the body of the deceased.
14. CW-1 Dr. Ramesh Chandra, the then surgeon of District Hospital, Faizabad, who has treated injured Chandreshwar Pratap Singh in District Hospital, Faizabad and has also stated that since his condition was serious, therefore, he was given first aid and was referred to Lucknow.
CW-2 Shri Ram Lakhan Dubey, the owner of the jeep on which deceased Chandreshwar Pratap Singh had gone to the place of occurrence. During investigation this jeep was taken into custody from the place of occurrence. He has given evidence, though, hearsay, but in favour of the defence.
DW-1 is Siya Ram Pande and DW-2 Vijay Bhan Singh have stated the defence case as stated earlier.
DW-3 Markandey Pande has proved the medical examination report of Vijay Pratap Singh dated 4.11.1999 as secondary evidence.
15. After appreciating the evidence available on record, the trial court has considered the evidence of PW-2 and PW-3 wholly reliable and has also found the statement of deceased recorded by PW-11 Lal Mani to be wholly reliable as his dying declaration. The defence theory was discarded by the trial court observing that when incident of this case had taken place at 11:00 a.m., in which Chandreshwar Pratap Singh had received injuries then it was not possible subsequent thereto at 11:30 a.m. that he could have taken part in any incident and on this ground the defence theory was discarded. The trial court was of the view that offence committed by the accused persons inter alia shall fall under Section 304 (I) I.P.C., as no deadly weapon was used and accordingly convicted the appellants, hence all the aforesaid criminal appeals.
16. Very lengthy arguments were advanced in these appeals from both the sides. On behalf of the appellants Mr. Nagendra Mohan, Mr. Chandra Bhushan Pande and Mr. Indrajeet Shukla have argued at length. The substance of the argument raised on behalf of the defence was that PW-2 Ram Naresh Singh was a chance witness. His evidence clearly shows that he was not even present at the place of occurrence. PW-3 Vijay Pratap Singh claims himself to have come to the place of occurrence on the information given by PW-2, therefore, once the presence of PW-2 Ram Naresh Singh is found to be doubtful then the presence of PW-3 Vijay Pratap Singh also cannot be believed on the place of occurrence. He has also argued that the trial court has overlooked all the material inconsistencies in recording the statement of deceased under Section 161 Cr.P.C., and without considering all these aspects, has found the same to be wholly reliable and has convicted the appellants. Learned counsel for the appellants has further submitted that the prosecution has not given any explanation as to how Om Prakash Tiwari has received injuries. Learned counsel for the appellants has placed reliance on several pronouncements of Hon’ble Apex Court, which shall be considered at the relevant part of the judgment.
17. On behalf of the State, learned A.G.A. Mr. Umesh Kumar Verma, and on behalf of complainant Mr. I.B. Singh, learned Senior Advocate and Mr. Manish Kumar Singh, Advocate have made their submissions.
18. Learned A.G.A. has submitted that the statement under Section 161 Cr.P.C. of the deceased was admissible under Section 32 of the Indian Evidence Act as dying declaration. He has also argued that the presence of TATA 407 was shown in the site plan of Case Crime No. 114-A of 2001 and said site plan has not been challenged in the cross examination, therefore the presence of TATA 407 on the place of occurrence by which the road was blocked, stands established. The witnesses have fully supported the case of the prosecution and the trial court has rightly appreciated the evidence available on record.
19. Mr. I.B. Singh, learned Senior Counsel has argued on behalf of the complainant that the date, time and place of occurrence has been admitted by some accused persons themselves in the statement recorded under Section 313 Cr.P.C. in reply to question number (1) and the manner of assault has been stated by the witnesses. Therefore, the trial court was right in concluding that the appellants have caused this offence and has rightly convicted them.
20. Mr. Manish Kumar Singh, Advocate has argued on behalf of the complainant that offence committed by the appellants would fall under Section 302 I.P.C. and not under Section 304 (I) I.P.C., because the deceased was given blows so mercilessly that they all had intentionally caused injuries with the knowledge that the injuries caused by them shall in all probability result into the death of the deceased, so the offence committed by the appellants would fall under Section 302I.P.C. Apart from it, he has also made submission regarding the truthfulness of the prosecution witnesses and the reliability of the dying declaration.
21. Keeping in view the rival submissions, the evidence of the prosecution witnesses has to be appreciated. In the instant case, admittedly there is no dispute to the fact situation that only two witnesses of fact have been examined in support of the prosecution. PW-2 Ram Naresh Singh, who is first cousin of the complainant was resident of a village situated at a distance of 6 – 7 kilometers from the place of occurrence. He is the person who has given the information, as per the case of the prosecution, to PW-3 Vijay Pratap Singh at his residence and thereafter PW-3 Vijay Pratap Singh came to the place of occurrence along with some other persons and had taken Chandreshwar Pratap Singh in injured condition to District Hospital Faizabad on a jeep. It is true that incident of this case has taken place on a road, so every person who was a passerby may be a witness of this incident. But such person must come with a reason for his presence there.
22. In this case the prosecution has come with a motive that on 31.7.2001, the incident of altercation had taken place with Sunil Kumar Tiwari and others on one side and the deceased Chandreshwar Pratap Singh on other side. The reason for such incident was that Sunil Kumar Tiwari, who happens to be the nephew of Janardan Prasad Tiwari under his political influence used to run the vehicles as Taxi without taking token from the taxi stand and without paying the taxes. This act was objected to by Chandreshwar Pratap Singh on which this quarrel took place wherein Chandreshwar Pratap Singh was threatened by Sunil Kumar Tiwari and his associates and because of that enmity, the offence has been committed. Since the prosecution has come with direct evidence and law is settled on the point that in case of direct evidence, the motive pales into significance. On this point, reference may be made to the pronouncement of Hon’ble the Apex Court in the case of Hon’ble the Apex Court in the case of